Your spouse packed up and left four months ago without warning or explanation. Now, you're wondering whether this sudden departure gives you legal grounds for a fault-based divorce in Virginia. The answer depends on specific legal requirements that go beyond simply walking out the door.
Virginia law recognizes desertion, also called spousal or marital abandonment, as one of several fault-based grounds for divorce, but proving desertion requires more than showing your spouse moved out. Our Chesapeake family law attorney can help guide you toward informed decisions about your divorce strategy and protect your financial interests during this difficult time.
How Does Virginia Law Define Willful Desertion or Abandonment?
Virginia Code Section 20-91(a)(6) establishes willful desertion or abandonment as grounds for absolute divorce, requiring two key elements: a breaking off of cohabitation and intent to desert without justification. This desertion can take two distinct forms under Virginia law.
Physical Desertion
Physical desertion occurs when one spouse leaves the marital residence without the other's consent and remains away. That conduct supports a divorce from bed and board immediately, and, if it continues for one year, an absolute divorce on marital abandonment. The departing spouse must have no intention of returning to resume marital duties. Simply moving out during a trial separation or leaving by mutual agreement doesn't qualify as desertion under Virginia law.
Constructive Desertion
Virginia recognizes constructive desertion when severe misconduct by one spouse, such as cruelty or extreme withdrawal from marital duties, makes it legally the other spouse's desertion, even if the innocent spouse is the one who physically leaves. This doctrine acknowledges that sometimes the spouse who stays in the home is actually the one abandoning the marriage through their conduct.
How Long Must the Desertion Continue?
The timeline for desertion varies depending on what type of divorce you're seeking. Virginia law provides different options based on how long the desertion has lasted.
Timing for Different Types of Divorce
Virginia law requires desertion to persist for at least one year before it becomes grounds for absolute divorce. However, you can file for divorce from bed and board based on desertion immediately after it begins. After one year, this can be merged into an absolute divorce.
What Resets the Clock?
The desertion period resets only if the parties resume cohabitation (often discussed as condonation). Brief visits or isolated sexual encounters do not, by themselves, show cohabitation or reconciliation. Brief visits to collect belongings or encounters that don't involve resuming marital relations won't interrupt the desertion timeframe.
What Evidence Do Virginia Courts Require?
Proving desertion or spousal abandonment requires meeting Virginia's specific evidentiary standards. The state has particular rules about what type of proof courts will accept in divorce cases.
The Corroboration Rule
Virginia generally does not grant a divorce on the uncorroborated testimony of a party alone. Instead, you need additional evidence beyond just your own word that desertion occurred.
Types of Supporting Evidence
Written communications provide strong corroboration when your spouse explicitly states their intention to end the marriage or refuses to return home. Text messages, emails, or letters serve as powerful proof.
Financial records showing your spouse stopped contributing to household expenses, lease agreements for new housing, or utility transfers also demonstrate permanent departure.
Witness testimony adds crucial credibility. Friends, family members, or neighbors who can testify about your spouse's statements or actions regarding the marriage provide valuable corroborating evidence under the corroboration requirement.
Are There Valid Defenses Against Desertion Claims?
Even when physical separation has occurred for over a year, several legal defenses can defeat claims of abandonment. Understanding these defenses helps both parties evaluate the strength of potential desertion allegations.
Mutual Consent
Separation by mutual consent is not desertion. If an initially non-consensual separation later becomes consensual, desertion ends at that point. The one-year period for an absolute divorce on desertion will not accrue from that point forward.
Reasonable Cause
A spouse who leaves due to domestic violence, adultery, or other serious marital misconduct can argue their departure was justified. Virginia courts recognize that staying in dangerous situations isn't required to preserve marriage rights.
Constructive Desertion
When one spouse's misconduct forces the other to leave the marital home, the spouse who actually departed might claim that their partner's behavior constituted the real desertion. This defense flips the desertion allegation against the filing spouse.
How Does Desertion Affect Property Division?
While Virginia follows equitable distribution principles, fault-based divorce grounds like spousal abandonment can influence how courts divide marital assets and debts. The economic impact of desertion often carries more weight than the desertion itself.
Equitable Distribution
While desertion alone doesn't automatically change property division, Virginia Code Section 20-107.3(e) allows courts to consider monetary and non-monetary contributions when dividing assets. The spouse who continued paying all marital expenses despite the separation might receive additional consideration during property division.
Property Valuation
By statute, Virginia courts value marital property as of the evidentiary hearing unless they find another date more appropriate. The separation date remains important for classifying property as marital or separate, but it's not the default valuation date.
Financial Contributions
Courts examine any dissipation or use of marital funds under equitable distribution factors. The spouse who remained and maintained the marital home, paid taxes, and made necessary repairs might receive credit for these additional financial burdens.
What About Spousal Support After Divorce?
Unlike some other fault-based divorce grounds, desertion doesn't automatically prevent a spouse from receiving financial support after divorce. Virginia law treats abandonment as one factor among many in spousal support decisions.
Unlike adultery, desertion doesn't create an automatic statutory bar to permanent spousal support. Virginia Code Section 20-107.1 lists desertion as one factor courts consider when determining spousal support, but it's not an absolute prohibition. The court weighs desertion alongside other factors like financial need, earning capacity, and length of marriage.
How Does Desertion Impact Child Custody Decisions?
Desertion allegations can influence child custody determinations, though Virginia courts always prioritize the best interests of the child above all other considerations. The key is distinguishing between abandoning a spouse and abandoning children.
Best Interests Standard
Virginia custody decisions focus on the best interests of the child with no presumption favoring any particular custody arrangement or parent. Desertion can be relevant to the best-interests analysis, but courts don't apply automatic rules against parents who leave.
Spousal vs. Parental Abandonment
Courts distinguish between deserting a spouse and abandoning children. A parent might have valid reasons for leaving an abusive spouse while still maintaining relationships with their children.
The key factor is whether the departing parent made consistent efforts to remain involved through regular contact, financial support, and participation in important decisions for their children.
Should You File on Desertion-Based Divorce Grounds?
The decision to pursue desertion as grounds for divorce requires careful consideration of both legal and practical factors. Virginia offers multiple divorce options, and choosing the right path depends on your specific circumstances and goals.
Fault-Based Divorce Grounds
Before pursuing fault-based divorce, recognize that it involves additional requirements and potential complications that may not be necessary in every case.
No-Fault Alternatives
Virginia's no-fault divorce requires six months of separation only if the parties have no minor children and have a written separation agreement. Otherwise, it requires one year of separation. No-fault divorce avoids the need to prove fault-based grounds and typically involves less contentious proceedings.
When Desertion Claims Make Sense
Desertion-based divorce makes most sense when you have clear corroborating evidence and when fault-based divorce grounds offer meaningful advantages in property division or spousal support determinations. Consider your ultimate goals and the strength of your evidence when making this choice.